
THE KANSAS QUESTION. 



SPEECH 



OP ♦ 






685 
366 
JPV 1 



HON. THOMAS S. BOCOCK. OF VHIGINIA, 

IN THE HOUSE OF REPRESENTATIVES, MARCH 8, 1858. 



Tiie House being in the (/ommitlee of the Whoirt on the 
state of tlie Uni«:i — 

Mr. BOCOCK said: 

Mr. Chairman: I preferalways to address my- 
self to the subject before the House, but I know 
the difficulty which a gentleman encounters here 
in obtaining the floor, especially on so importanta 
proposition as the one which I design to discuss. I 
•therefore resolved some days, I may say week.s, 
ago, to avail myself of some suitable occasion in 
the Committee of the Whole on the state of the 
Union, to deliver to this committee some views 
which have presented themselves to my mind in 
relation to a question which has taken up so much 
of our time, and v/hich has attracted so much of 
the public attention. 

It was originally my intention, Mr. Chairman, 
to take but a brief glance, by way of preface and 
for the purpose of completing the view which it 
was my purpose to submit, at the original Kan- 
sas-Nebraska bill; but a speech delivered by my 
respected colleague from the Norfolk district, 
[Mr. MiLLsoN,] a short time ago, makes it in- 
cumbent upon me, in my judgment, to devote a 
larger portion of my time to a discussion of this 
preliminary question. I regret this very much; 
because I know that, in the brief hour allotted to 
us here, I should scarcely have been able to elab- 
orate and enforce the views which I design to 
present upon the great and leading question. As 
the matter now is, I shall be able to touch but 
briefly the points I expected to make, both in 
reply to the speech of my colleeigue, and upon 
the main question itself. 

And I wish to say here, that feeling confident 
that I shall not be able to get through all I have 
to say, 1 hope no gentleman will feel called upon 
to interrupt me, unless I say something which 
calls for personal explanation from him, individ- 
ually. 

Allow me one more word, by way of intro- 
duction. In what 1 may say in relation to the 
speech of my colleague, I desire to reciprocate 
most cordially the kind and friendly tone in which 
he expressed himself in relation to his colleagues, 
with whom he has heretofore differed on this 
Kansas question. And 1 am the more anxious 
to do so, because I know that I have not com- 
mand of that accurate and precise phraseology 
which the gentleman himself commands, and 
which is necessary to give one's precise meaning. 



The speech of my friend and colleague, like aW 
his performances, and, jierhaps, in a greater de- 
gree than any of them heretofore, was able atid 
ingenious. The onward sweep of his logic was as 
regular and as graceful as the charge of the light 
brigade at Balakhiva; but I say, with all respect, 
that, in my humble judgment, it led to no more 
useful or valuable result. What, sir, was the great 
lesson taught by the speech of my colleague .' One 
might have supposed for a moment that his de- 
sign was to enforce upon t lie attention of the House 
the feet that in accepting the Kansas-Nebraska 
bill in 1854, the South did not get all to which it 
was entitled. If I had been satisfied that this was 
the purj)ose and intention of my colleague, 1 
should not have felt called upon to reply to it. But 
in view of the entire speech, and all the circum- 
stances which surrounded it, that supposition can- 
not be maintained. Then, Mr. Chairman, could 
it be that my worthy friend and colleague felt him- 
self called upon to expend so much ingenuity and 
ability, and to give us so fine a display of dialec- 

'■ tics, for the purpose of proving that lie foresaw 
all the evils which have occurred in Kansas, and 

I that they are the legitimate and proper results of 
the Kansas-Nebraska bill ? Sir, he who claims 

! for himself the character of a prophet of the past, 
or a foreteller of woe, seeks a reputation which, 
in my humble judgment, is by no means desira- 
ble. One who felt deeply and thought strongly, 
and who knew v/ell how to v/reak his thought 
upon expression, has said: 

" or all tlie horrid, hideous notKs of human woe, 
Worse than the owl songs or the niidni;;lit lilusu 
Fs that pnflentdus phrase ' I told you no ." 
Uttered by iVifiuls, those prophets; of the past, 
Who, instead of telling what you now should do, 
Own that they thought that you would fall at last. 
And s-olace your uliglit lapse 'gainst 'ioiiosjiiores,* 
By a long meniorauduin of old stories." 
A prophet of the past ! Why, sir, it can avail 
but littJe in this case, at any rate; for if the evils 
which have occurred in Kansas are to continue; 
if the strife which has occasionally manifested 
itself there is to break forth anew and with in- 
creased violence, until the roar of battle and the 
fury of the storm shall fill the land with uproar, 
it will be but a poor privilege to come upon the 
stage,like the chorus in the ancient Greek tragedy, 
and in the lull of the tempest and the pause of the 
battle to sing a dirge of doom. If, on'tlie contrary, 
Kansas is speedily to be admitted into the Unier.i 






C 



and under the benign and genial influences of State 
independence and State sovereignty, all these 
evils are to be first localized, and then banished 
forever If " all the clouds that lower o'er our 
house," are to be " in the deep bosom of the 
ocean buried," then, in the panoranna of content- 
ment and prosperity which will follow, there will 
be no place for this wail of woe. The memory 
of Cassandra has but the greenness of the lichens 
and ivy that cover the ruins of Troy. It is min- 
gled in the memory with the recollection of a fall- 
ing city and a scattered people. Had Troy not 
fallen, it would long ago have perished like 
" Tlie fat weed that rots on Lethe's wharf." 

I desire now, Mr. Chairman, to notice particu- 
larly, but briefly, the leading points made by my 
colleague in his speech against the original Kan- 
aas-Nebraska bill. Tliey appear to me to have 
been twofold. He objected to it upon the ground 
that in its legal and necessary construction, jt sus- 
tained the idea of territorial sovereignty; and he 
also objected to iton the ground that it contained 
what is called the Badger proviso. Permit me to 
consider those objections seriatim. 

Mr. Ciiairman, I desire to say here, in the com- 
mencement of the remarks that I shall make upon 
ibis question of territorial sovereignty, that if that 
bill, in its legiiim^ite and necessary construction, 
did tolerate the idea of territorial sovereignty, I 
should prefer it, both being constitutional, to the 
doctrine of congressional restriction; for under 
congressional restriciion,if you have peace it will 
be the pepce of admitted inferiority of rights on 
the one side, and admitted superiority of rights 
9)1 the other. Under the doctrine of territorial 
sovereignty you might have strife and conflict; 
you would probably have a struggle among men 
of clashing interests and conflicting views to gain 
the ascendency; but poor as it would be, we would 
atil) have our chance, and we would have the con- 
solation, at any rate, to know, if the question were 
decided against us, it would be decided by those 
■who were to be most interested in the question at 
issue. 

But, sir, I contend that the legitimate and ne- 
cessary construction of that act does not sustain 
the idea of territorial sovereignty. The clause 
to which my colleague alludes is this: 

" It being the true intent and meaning of this act not to 
legislate sl.ivery into any Territory or State, nor to exclude 
it therefrom, l)ut to leave the people thereof perfectly tree 
to form and reyubite their domestic institutions in their own 
way, subject only to the Constitution of the United States." 

Now, it will be remembered that my colleague 
ridiculed the idea that the Congress of the United 
States intended gravely to abnegate the power to 
prohibit slavery in States of the Union already 
existing; but whatever this provision does not 
mean, it certainly does mean to do that. That is 

Srecisely what it does mean, most emphatically. 
Toother construction can be given to it;a:nd, per- 
haps, the reason for inserting such a provision 
in the bill was, that in the restriction of 1820 the 
power was charly and distinctly assumed by the 
Congress of the United States to prohibit slavery 
in the States. Here is that restriction: 

" Sec. 8 ^urf he it further enacted, 'i'hat in all that Itrri- 
tory ceded by France' to the United States, under the i.ame 
of ijouisjana, which lies north of 36° 3U' north latitude, not 
included within the limits of the State contemplated hy this 
act, slavery and involuntary .servitude, otherwise than in the 
punishuietit of crimes, whereof the parties shall have been 
duly couvicled, shall be, and is hereby, forever prohibited." 



And in the joint resolution for the annexation 
of Texas to the United States, we find this more 
distinct and emphatic clause: 

" And in such State or States as shall be formed out of 
said territory north of said Missouri compromise line, sla- 
very or involuntary servitude (except for crime) shall be 
prohibited." 

There is the power distinctly claimed; and in 
the Kansas and Nebraska bill it is distinctly sur- 
rendered. I do not contend that the Constitution 
afforded any pretext for such an assertion of 
power. Far from it. The claim had been made, 
however, and the surrender should follow. 

But the gentleman says that the insertion of the 
words "Territory or," before the word " State," 
makes that clause applicable to Territories in their 
territorial condition, as well as to States; and that 
the necessary construction of it is, that the people 
of Territories, as such, shall be left free to regu- 
late their domestic affairs, including the subject of 
slavery, in their own way. 

Now, Mr. Chairman, I do not contend — I would 
not be guilty of the want of candor to contend — 
that the language is not susceptible by possibility 
of such a construction. What I contend for is, 
that it is not the necessary construction of the 
clause. Now, sir, you will bear in mind, that the 
Territories of the United Slates often act in a 
somewhat anomalous manner. Consider, if you 
please, the case of the Territories of Florida, of 
Michigan, and of Iowa. You will bear in mind 
that, without any enabling act, without any au- 
thority whatsoever from the Congress of the Uni- 
ted States, those Territories proceeded to form 
State constitutions, and presented them here, ask- 
ing admission into the Union. What was their 
condition then.' I admit the doctrine that this 
was a sort of declaration of independence on the 
part of these Territories, and that their subse- 
quent admission into the Union was an acknowl- 
edgment of that independence. Congress was 
not bound to admit them, however; and if it had 
not, they would have remained in a territorial 
condition. Their status was then subject to the 
action of Congress. It might have been, then, in 
reference to this anomalous, or, if I may so ex- 
press it, hermaphrodite condition, that the words 
" Territory or State" were used. 

Now, sir, I submit that if the phraseology em- 
ployed was applicable to the Territories in their 
territorial condition, the grant was made " sub- 
ject to the Constitution of the United States." 
This proviso followed the grant, and controlled 
it. Whatever power we constitutionally had we 
gave up, and no more. The gentleman says 
that the Congress of the United Slates ought to 
interpret the Constitution for itself, and in pass- 
ing a law should look to the constitutional limits 
and not surpass them. I admit, that when the 
Congress of the United States proposes to pass 
an ordinary act that is to be a rule of conduct for 
individuals, it ought to determine for itself, as far 
as it can, whether it be constitutional or uncon- 
stitutional; but this was no such act: this, follow- 
ing the manner of a deed, was a grant of power 
from the Federal Government to the Territorial 
Legislature; all that was done was to say, what- 
ever power we have in relation to this subject, 
we surrender it to the Territorial Legislature. 1 
contend, sir, that however the words " Territory 
or State" be construed, we were not called upon 



10 give an unconstltulional vote, for the limitation 
followed the grant wherever it went. As is fre- 
quently done in deeds from one man to another, 
we conveyed whatever power we had, subject to 
adjudication. 

I submit now, whether we were not right in 
our action? The question of territorial sovereignty 
being a matter in dispute between northern and 
southern Democrats, then if we had required it to 
he adjudicated by Congress, it would have re- 
sulted that while we were wrangling upon this 
question, the opportunity to carry the more im- 
portant point of repealing the Missouri restric- 
tion, would have been lost, perhaps irretrievably. 

Now, sir, comes in the decision of the Supreme 
Court of the United States to determine the ques- 
tion. It says tliat this doctrine of territorial sov- 
ereignty has no countenance in the Constitution; 
and whatever evils my colleague may think arose 
before that time, from the doubt which existed on 
the subject, or whatever evils he might have ap- 
prehended from this cause, afterwards, from the 
lime of the decision of the Supreme Court in re- 
gard to this case, the doctrine of the Kansas-Ne- 
braska bill stood vindicated and redeemed from 
ail suspicion or taint of encouraging /erri^oj-iaisou- 
e)-eigntij. And I would say to my colleague that 
perhaps others may have foreseen the decision of 
the Supreme Court as well as himself. Since that 
decision, all his fears and all his troubles on this 
subject may be forever quieted. 

I shall consider now, for a few brief moments, 
the other objection of my colleague. It is the ob- 
jection to what is called the Badger proviso; and 
permit me to say here, Mr. Chairman, that when 
that proviso was introduced in the other wing of 
the Capitol, by the distinguished Senator whose 
name it bears, I regretted it. I regretted it because 
I thought it was a concession, in form at least, 
from the weaker and oppressed interest in the 
land, and that which had been so long suffering 
under the injustice of this Missouri restriction, to 
the stronger and aggressing interest. But I did 
not attribute to it that importance which my col- 
league does; and I desire to examine for a while 
into its true meaning and elTect. What is that 
proviso .' This is its language: 

'•Nothing herein contained shall he constriii'd to revive 
or put in lorce any law or regulation that may have existed 
prior to the act or March, 1S'20, either proleciing, estabhsh- 
ing, prohibiting, or abolishing slavery." 

Now, Mr. Chairman, I wish to consider that 
proviso in two points of view. The Missouri 
restriction, which the act of 1854 was intended to 
repeal, was constitutional or it was unconstitu- 
tional. I wish to look at it under both these sup- 
positions. Suppose, now, that the Missouri re- 
striction of 1820 was constitutional, what did it do.' 
Why, sir, there were some old French or Spanish 
laws, recognizing slavery, which existed in the 
Territory of Louisiana when it was acquired from 
France, and wiiich were, by tolerance, continued 
in existence. Here comes then the restriction of 
1820, and, by implication, suspends these old laws, 
and makes the ground an open field; and after 
making it an open fi<;ld, it next advances and takes 
possession of the field, and erects on it a barrier, 
a positive prohibition against the introduction of 
the peculiar property of the South. The effect of 
the restriction then was twofold. Now, by the 
repeal of the restriction by the act of 1854, what 



did we do, in that ■aupposition ? We, at least, 
removed the positive prohibition, and left again 
the open field of which I have spoken. In that 
supposition, did we not gain something? 

Well, take the other supposition! Say, now, 
that the restriction of 1820 was unconstitutionall 
What, then, was the consequence of the restric- 
tion .' Then it was null and void ab initio. It had 
no effect or force whatever. It did not repeal the 
old French or Spanish laws. They were not, in 
legal contemplation, suspended. Well, sir, what 
does this Badger proviso say ? It says, "nothing 
herein contained shall be construed to revive or put 
in force," &c. But these laws did not require to 
be revived by that act of 1854. They were in ex- 
istence aleunde — not by virtue of the act of 1854, 
but by virtue of their previous existence never 
having been suspended. The proviso says that 
the act of 1854 shall not put them in force. It doea 
not say that they shall not be in force. I could 
enlarge on this idea, which I consider strictly legal 
and tenable; but I prefer, in the little time allowed 
me, not to dwell longer on this point. I wish to 
rise to a higher and more compi-ehensive, and, in 
my opinion, a more statesmanlike conception of 
this entire question. What is it, sir .' Here, Mr. 
Chairman, had been a conflict in the land as to 
the question whether the Constitution of the Uni- 
ted States, propria ft^ore, extended or did not 
extend to the Territories of the United Slates. 

The mighty intellects of Calhoun and Webster 
had met in stern conflict on this question on the 
floor of the Senate Chamber, and their followerfl 
throughout the country liad ranged themselves on 
the one side and on the other. Not only that, Mr. 
Chairman, but there was also a contest whether 
this Government of the United States should be 
allowed to exert its power to discourage and limit 
the property of one section of the Union, and to 
extend and enlarge the property of the other sec- 
tion. The Kansas-Nebraska bill of 1854 comeB 
in and decides both these questions. It declares 
the Constitution of the United States expressly 
extended to these Territories; and it further de- 
clares that the Government of the United States 
shall not exert its power or authority to limit or 
restrain the property of one portion of the Union, 
and to stimulate and encourage the interest of the 
other portion. 

Here, then, we have the Government of Ibe 
United States surrendering its authority over thie 
question and expressly declaring the Constitution 
of the United States extended to these Territories. 
Then comes the decision of the Supreme Court 
in the Dred Scott case, declaring that the Consti- 
tution, so operating in the Territories, shall stand 
as a tower of strength and a muniment of defense 
for the property and interests of all sections of the 
Union — of the one section as well as the other. 
What now do you wunt with your wicker-work 
of Spanish and French laws.' You have in the 
place of them the supreme power, the mighty in- 
fluence, the permanent protection of the Constitu- 
tion of the United States — the highest American 
law. You have in that a shield stronger than 
the shield of Achilles. You have a tower of 
strength more impregnable than twenty Cron- 
stadts. And still you talk about your French 
and Spanish laws ! This, sir, was a great era in 
the history of American legislation. It was the 
era of an abdication, of a surrender of usurped 



4 



power on the part of the Cotiffrcss of the United 
States, and of a restoration of the Constitution to 
its true control and supremacy. It is an abdication 
apd restoration more important, and grander in 
every point of view, than any abdication or resto- 
ration of " prince, potentate, or power," recorded 
in the history of the world. The Congress of the 
United States glvea up its usurped power to limit 
the property of tlie South. The Constitution of 
the United States is restored to its former rule. 
And while all are rejoicinor at this f^reat era in 
American leoislation,at this great abdication and 
rratoration, my colleague chooses to stand by and 
complain that the usurper, in going out, takes 
with him. a litile of the dirty linen of the estab- 

-ILshment. 

But, sir, 1 wish to look at this subject as a .sub- 
ject of })rophecy. There were more predictions 
made than one. There were more prophets than 
rwy colleague in the land at that time. The na- 
tion was then rattier plethoric of prophets. It 
was declared, on the other iiand, that if we did 

iloose these French or Spanish laws, our prop- 
erty would enjoy the protection of the Constitu- 
tion, and also sucli protection as might be given 
by the Territiirial Legi.'^lature. And did we not 
have it.' Herein was prophecy falfiiled. My 
ooileaeue seems to think that the evils that have 
arisen in Kansas were the necessnryand the log- 
ical results of the Kansas-Nebra.ska bill. Now, 
sir, I submit to him, whether, if they are the 
natural and legitimate results of the principles of 
»he Kansas-Nebra.skabill, the same consequences 
would not follow wherever the cau.se exists.' But, 
sir, the principles of the Kan-sas and Nebraska 
bill were applied to the Territory of Nebraska; 
they have been applied also, in elTect, to New 
Mexico; and why have not the same evils re- 
sulted there, if they follow necessarily from the 
principles of that bill .' 

If the principles of the Kansas-Nebraska bill 
had been adopted long years ago, before the pub- 
lic mind had become so distempered anri diseased, 
no troulile would have followed; but, in my judg- 
ment, everything would have gone off smoothly 
and quietly under them. The settlement of Kan- 
sas would have been left to the ordin:iry laws of 
settlement; men would have gone ther(? from the 
ordinary causes, to select them homes and work 
out their fortuiies; all would have gone off well. It 
was beciuise the public inind had bncome distem- 
pered and diseased; it was because the wranglings 
aere on the floor.s of Congres.s had |)roduced such 
heart-burning.'i and bad feelings between the two 
sections of the country, that the.se results followed . 
Theextrdordinarymeansadopted to settle Kansas; 
your emigrant aid associatioiu, and the characters 
of the men whom they sent there; your. Tim Lanes, 
and your Sharpe 's rifles ; these must bear the blame 
lor tjie troubles which have arisen in Kansas. 

Mr. Chairman, these evils are upon us, and it 
is proposed to settle them by the admission of 
JCansas into the Union as a Slate. The President 
of the United States ha.s sent a message to the 
Congress of the United States, communicating to 
asiheconstitutionadopted at Lecompton,and rec- 
ommending that Kansas shall be admitted into the 
Union as a State under that constitution. I stand 
here to-day to take my position in favor of such 
admission, and I shall now proceed to give the 
reasons upon which 1 base my action. 



Now, sir, I am free to adnMt that when this con- 
stitution comes to us we have the right to inquire,, 
first, whether there is a sufficient population in 
Kansas to entitle her to come into the Union as a 
State. Well, sir, I believe there is no difference 
j of opinion upon that subject. All parties are 
I agreed upon that point. The Topeka men seem 
I to have acted all along upon the supposition that 
j there was population enough there to justify a 
j State constitution. TheLecomplonmenhavedone 
{ the same, and those who sustained the measure 
j proposed by the distinguished Senator from Geor- 
gia, during the last Congress, seem never to have 
objected on that ground. 

Then, sir, I admit that you have the right to in- 
quire whether the form of Government proposed 
is republican. I believe there is no difficulty upon 
that subject. All are agreed upon that point. 

There is another and very iinportant inquiry 
which we have a right to make. We have the 
right to inquire wiiether the constitution senthere 
is in fact the constitution of the State of Kansas 
or not; and it is to that point that 1 propose now 
to direct my remarks. 

Now, sir, 1 vviah to say in the beginning, that 
I design to argue this point with all fairness and 
candor if I can. I shall make certainly very lib- 
eral aJmissions to the gentlemen on tiie other side. 
I admit that all republican constitutions " derive 
their just povrers from tiie consent of the gov- 
erned." 1 admit the doctrines that " sovereignty 
makes constitutions;" that "sovereignty rests 
exclusively with the people of each State;" that 
"sovereignty cannot be delegated;" that it is 
" inalienable, indivisible," &c. I also admit fully 
the doctrines of the Kan.sas and Nebraska bill, 
that the people, when they come to form their 
constitution, should be let't tVee to form and reg- 
ulate their own institutions in their own way. 

Now, sir, if I can maintain the propriety of the 
admission of Kansas into the Union upon those 
principles, gentlemen ought to acquiesce; if not, I 
lose my proposition, and I fail in the effort I am 
here to make. 

In the first place, then, I admit that govern- 
ments instituted among men derive their just 
powers from the consent of the governed. Thai 
is the first admission. But I deny that it is a 
necessary corollary from this princij)le that the 
con.stituiion of a Slate shall be submitted to the 
votes of all the governed. On the contrary, no 
constitution that was ever framed, either in this 
or any other country, was ever submitted to the 
vote of all the people who were to be governed by 
it. How many of the States of this Union allow 
the African race to vote.' I think New England 
and New York alone aspire to that " oad emi- 
nence." Yet the African race are among the gov- 
erned. How many States in this Union allow a 
citizen just landed upon its soil from any other 
State, or from a foreign country, to vote.' Not one, 
I believe. In most of the States in the Union, they 
require a man to have resided in the State for twelve 
months, even if a citizen of the United States, be- 
fore he is allowed to vote. And yet, sir, they are 
among the governed. How many of the States 
of this Union allow females and children to vote.' 
Not one; and yet, are they not in the list of thegov- 
erned? Then it is a clear proposition, that the fact 
that a form of government derives its powers from 
the consent of the governed, does not require the 



constitution to be submitted to all who are to be 
governed under it, I will show, in the sequel, 
that the consent of the governed is given on the 
representative princi|(le. 

The next concession which 1 make is to be 
found in a certain letter written by the late Gov- 
ernor of Kansas, upon the occasion of his resig- 
nation of office. He says that — 

" Sovereignly makes constitutions ; that sovereignty rests 
exclusively Willi the people of each State ; that sovereignly 
cannot be delciiati'd ; that it is inalienable, indivisible, a 
unit incapable of partition." 

Now, sir, I admit all that; but I will not con- 
cede for a moment, because sovereignty is inalien- 
able, that nets of sovereignty cannot be exercised 
through some medium, organism, or represent- 
ative agency; far from it. I think that the cele- 
brated letter to which I refer afifords a remarkable 
instance of how areally ai^le man, when sustain- 
ing a heresy, may entangle and overthrow him- 
self in the mazes of his own inetapliysics. Robert 
J. Walker declares: 

" It will not bf! denied that sovereignty is the only power 
tliat can make a State constitntion, and thai it rests e,xclu- 
Bively with the people; and il"itis inalienabh', and cannot 
be delegated, as 1 have shown, then it can only be e.xer- 
vised by the people themselves." 

And again, in reference to the Constitution of 
the United Slates, he says: 

" Each State acted for itselfalone in acoedins to ilie Arti 
Clesof C'onfi'der.ation in 1778, and each Slate acted lor itself 
alone in franiinL' and ratifying, each for itself, the Constitn- 
tion of the United States.' Sovereignty, then, with us, rests 
exclusively with the people of each State." 

Here, sir, he assumes that each State adopted 
the Constitution of the United States for itself, 
and that the Constitution of the United States, 
teing so ad<ipted, has become the constitution of 
each particular State. Yet he seems not to have 
biorne in mind that that very fact upsets his whole 
theory. Sir, the Constitution of the United States 
is not to-diiy binding in the State of Virginia, or 
in any other State of this Union, or else the doc- 
trine is erroneous that it requires the people in 
their primary Ciipacity to ratify it. Why, sir, the 
Constitution of the United States was framed by 
a convention and ratified by conventions and Le- 
gislatures in the several States; not in any one case 
was it referred to a directvote of whatMr. Walker 
calls the sovereign people. 

Sir, to declare war and to make peace — are they 
not acts of sovereignty ? And are they not done 
by representative agencies .' Why may not a con- 
stitution be formed in like inanner.' Mr. Chair- 
man, a great deal of confusion exists in the public 
mind in relation to the question, who arc the peo- 
ple in whom the sovereignty resides.' I accord 
with the doctrine of Robert J. Walker, and say 
it resides in the masses. Every man and every 
citizen who has rights and power in the commu- 
nity is a part of the sovereign mass. All of the 
citi7,cns together constitute tin; original fountain 
and source of all power in a community. They 
are the sovereignly. Now, sir,if sovereignty is a 
unit and indivisible, the whole sovereign mass 
must act together. If one citizen be wanting, the 
unity is broken and the sovereignty destroyed. 
It is clear, then, that if sovereignty resides in the 
mass, and is indivisiljle, it cannot be carried out 
into acts wiihoui a medium, an organism, or a rep- 
resentative agency, as the free mind cannot act 
except through the agency of the body. This re- 



sults from the fact that it is impossible ever to get 
all the citizens together in consentaneous action. 
If this sovereignly is a unit, can a majority exer- 
cise that sovereignty .' Those who do not act with 
the majority have a part of the sovereignty in 
themselves, and their dissent breaks the unity. 

I wish now to inquire upon what principle the 
majority acts for a comrnunity, and what results 
from that fact? I say that the majority does not 
act for the cominunity upon any princijile of nat- 
ural right. Let us suppose that the whole frame- 
work of Government could by some mighty con- 
vulsion be struck from existence in any State of 
the Union: what would follow .' A primary 
meeting of the people would be held, to put into 
operation some rude structure of government. 
Would all the people assemble.' By no means. 
That is always impossible. A great many would 
stay away, and those who stayed away would 
have a part of the sovereignty in themselves. But 
according to the principle declared by Governor 
Walker, those who came would be the represent- 
atives of those who stayed away. Each man 
who should attend the primary meeting would 
represent his absent neighbor and family; and, 
upon the principle of representation, that primary 
meeting could act for the whole. If the commu- 
nity left without government should consist of 
one hundred thousand people, not inore than 
eighty thousand could assemble in primary meet- 
ing. How would they act.' Tiie eighty thou- 
sand would not agree upon ail questions, or per- 
haps upon any question; and from necessity, a 
majority wouldcontrol their decisions, unlesa dif- 
ferent rule were agreed on. Then forty-one thou- 
sand, being the majority of the eighty thousand, 
would speak for the whole community. Upon 
what principle of natural right or undivided sover- 
eignty, I ask, can forty-one thousand declare the 
opinion of one hundred thousand .' Again, take the 
case of the voters of a community. Upon what 
principle do they act for the whole? Are they the 
sovereign mass? No, sir, l)y no means. Take the 
case of Kansas itself; and allowing that there are 
one hundred thousand people in that territory, then 
say that the constitution is to be submitted to the 
voters. According tostatisiics,the numberof votes 
would be about one fifth of the entire mass. Take 
the census of 1840 or 1850, and then the vote at the 
intervening and succeeding presitlenlial election, 
and you will find that the votes are rarely, if ever, 
more than one fifth of the entire number of the 
people. Then if there were one hundred thousand 
people in Kansas, the number of voters might 
have been as high as twenty thousand. Of that 
twenty thousand, a majority would control, and 
eleven thousand would constitute that majority. 
Now, I ask, upon what principle of natural right, 
or of indivisible sovereignty, can eleven thou.sand 
voters declare tho.voice of one hundred thousand 
people? They are the organism or representative 
agency merely, through which the whole body- 
speaks, just as a convention is the mouth-piece 
of the people. 

Chief .Tustice Taney, in giving the opinion of 
the court in the Dred Scott case, says: 

" Undoubtedly, a person may be acilizini — that is a mem- 
ber of the eomniiuiity who form the sovirreigiity — althougli 
ho exercises nosliare oMIie poliiieal power, and is incapaci- 
tated from holding pariicular offices. Women and mioom. 
who form a part of the p^ilitical family, eaiinot vote ; and 
when a property qualification is required to vote or hold a 



6 



particular office, those who have not the necessary qualifi- 
cations cannot vote or hold the office, yet they are citizens. " 

There are a number of the citizens in every | 
community who constitute a part of the body j 
politic, who have a portion of the sovereignty in i 
themselves, but who are not allowed to vote. The 
voters, then, only represent the people. They are 
not, in fact, the sovereign people. So I show the 
universality of the representative principle. A 
primary meeting-, as usually constituted, is a 
i-epresentative agency. A convention is a repre- 
sentative agency. The voters are a represent- 
ative agency, and any question between them is 
a question between different representative agen- 
cies. Each one speaks the voice of the people in 
its sphere, just as the agent when acting within 
his power speaks the voice of his principal. Talk 
about appealing from the convention to the sov- 
ereign people ! I say, if you appeal to the voters, 
you only appeal from one representation to an- 
other representation. Perhaps broader, perhaps 
better, but still a representative agency. You 
deny the voice of one organism through which 
the people speak, and lake the voice of another 
organism. When there is no law to determine 
who shall declare the voice of the people, the peo- 
ple are a law unto themselves, and necessity and 
circumstances determine. When you have an 
organized society, the law declares who shall 
speak for the people in each particular case. 

Now, apply these principles to the case of Kan- 
sas. Who was authorized to speak the voice of 
the people of Kansas in relation to the constitu- 
tion? The convention, and the convention only. 
Sir, the convention was the organism through 
which sovereignty spoke. Its voice was the voice 
of the people. The Constitution of the United 
States, framed, as I have said, by a convention, 
and ratified in each State by a convention, never- 
theless announces itsrlf as the act of the people. 
In its preamble it says: " We, the people of the 
United States, &c., &c., do ordain and establish 
this Constitution." So in Kansas, the convention 
was merely the mouth through which the people 
were presumed in law to speak. The constitu- 
tion adopted by them was, therefore, the act of 
the people. You may think that another agency 
would have been better, but you cannot properly 
interfere, for this is that which was spoken when 
we said that we would " leave the people thereof 
(of Kansas) perfectly free to form and regulate 
their domestic institutions in their own way." 

I have not undertaken to inquire whether the 
Legislature which called this convention was a 
legally-authorized Legislature. I do not think it 
necessary to stop to argue that question. I do 
not believe any lawyer in this House will, upon 
legal principles, deny the proposition. Though 
the first Legislature may have been elected ori- 
ginally by fraud, it was the government de facto, 
and was never set aside by any competent author- 
ity. Wc are bound to recognize its acts. The 
whole jurisprudence of Kansas rests upon the 
legality of the two last Legislatures — the one of 
which took the sense of the people whether there 
should be a convention, and the other of which 
passed the law calling the convention. Mr. Walker 
himself told them that all the usages and rights of 
the people of Kansas hung upon the legality of 
the Legislature of Kansas. He says: 

" If tliat Legislature was invalid, then we arc without 



law or order in Kansas — without town, city, or county or- 
ganization ; all legal and judicial traiisaciionr^ are void; all 
titles null, and anarchy reigns throughout our borders." 

Permit me to illustrate this matter. You re- 
member that a great complaint was made in regard 
to an election in a sister State not long ago. I am 
not here, upon this occasion, to decide whether 
those complaints were well or ill-founded. I can 
make any supposition I please by way of anal- 
ogy. Let me say, then, for the sake of the argu- 
ment, that the vote in the city of Baltimore was 
illegal, and that the vote of that city controlled 
the gubernatorial election, and the election of 
members of the Legislature enough to control the 
complexion of that body. Will gentlemen say 
that because that is so, the present Legislature of 
Maryland has no autl\ority in the State, and that 
its acts are null and void ? That body is the Le- 
gislature of Maryland. The Legislature which 
has the forms is the Legislature which has the 
power. 

So it is in Kansas. Its Legislature passed a law 
which is admitted on all sides to be a fair law, 
for the assembling of a convention. Gentlemen 
contend that there has been a radical defect in the 
manner in which this law was carried out. Why, 
Mr. Chairman, I think that objection has already 
been very fully answered, and I shall occupy but 
little time upon it. It is a legal principle in law, 
which all these gentlemen around me understand, 
that nobody can take advantage of his own wrong, 
or of his own laches. If the law passed by tht; 
Legislature of Kansas for the assembling of that 
convention had not enabled them to have had a 
fair election, by which they could send up dele- 
gates who reflected the voice of the people, I say 
there might be something in the objection. But 
the law was sufficient. It was the fault of the 
people themselves if they were excluded ; and that 
I will prove by the record. I say, if the people 
themselves had a chance to be represented in the 
convention, and would not be represented, it is too 
late for them to come now and complain; they 
cannot take advantage of their own laches. Here 
is what Mr. Stanton said in his message to tlic 
Legislature of Kansas at its called session on the 
8th of December, 1857: 

. "The census therein provided for was imperfectly ob- 
tained from an unwilling people, in nineteen counties of 
the Territory; while, in the remaining counties, being also 
nineteen in number, from various causes, no attempt was 
made to comply with the law. In some instances, people 
and otficers were alike averse to the proceeding; in others, 
the oliic-ers neglected or refused to act; and in some then- 
was but a small population, and no efficient organization 
enabling the people to liave a representation in the convcn ■ 
tion." 

He declares here that the " people and officers 
were, in some cases, alike averse to the proceed- 
ing;" yet these people, or their friends, now com- 
plain. 

But Mr. Stanton gives a fuller explanation of 
this matter in a speech recently delivefed in New 
York. There he says: 

"Well, now, gentlemen, shortly after I arrived in thfl 
Territory the process of taking the census was completed; 
and the returns were made by the sheriffs of the diflercnt 
counties to the probate .judges of those counties, in order 
that the census returns ni'ighi be corrected. That law which 
had been passed at the previous session of the Legislature 
of the Territory had provided that every voter in the Terri- 
tory should be registered, and no man should be entitled to 
vote for delegates to the convention unless he was regi8- 
tered. Going throngli the Territory. 1 lieard, on all sides, 
charges of great wrong and injustice; I heard the great 



mass of the pnopir proclaiming that the officers of the Ter- 
ritory had lUterly disregarded right and justice in the per- 
formance of this duty; in fact, they had not performed the 
duty at all. They said in many instances men of high char- 
acter, residents of long standing, men whose residence 
could not possibly have been unknown to the officers, had 
been left off the register. I said to them. Gentlemen, you 
might have gone to the probate judges, and ha*l those names 
put on the lists. But they said it was not their duty to go, 
it was the duty of the officers to register their names. Now 
it is useless for any of us to disguise the truth. The great 
ina.ss of the free-State peopledidn't carea fig whether their 
names were registered or not. They were opposed to the 
convention ; they were opposed to all the laws, and all the 
proceedings under it." 

The law ordered the sheriff in the month of 
March to make a census and registry, but to pro- 
vide against any defect in the action of the sheriff 
it directs that the probate judges should afterwards 
ait and hear afiplications for a correction of the 
sheriffs' lists. JMr. Stanton, it appears, advised 
those that complained to go to these probate 
judges, but they refused, saying it was not their 
duty to go. If they might have gone and done 
themselves justice and refused to do it, I say it is 
altogether too late for them to come now and com- 
plain. But, sir, this is a most mysterious sub- 
ject; (here is much mist and confusion about 
it. Mr. Stanton says the number of counties de- 
prived of representation in the convention was 
nineteen, while GovernorWalker says there were 
fifteen. But look, if you please, and see what 
those gentlemen thought of it before the late sin- 
gular turn in their political fortunes. Remember 
that this act for the takingof thecensus was passed 
long before Mr. Walker was appointed Governor 
of Kansas. The census was to be taken between 
the first and last of March; the probate judges 
were to sit from the 10th of April till the Jst of 
May; to make corrections in the sheriffs' lists, and 
the election was to take place in June. Now, Mr. 
Walker reached Lecompton on the 25th of May. 
At that time the whole matter was completed, and 
if there had been wrong done, it had been done 
before that, and he should have known it. Mr. 
Stanton was his avant courier — the John that 
went before to make his path straight. He had 
been in the Territory a considerable time, and 
according to his own account had received in- 
formation on this subject, and doubtless commu- 
nicated it. It cannot be f)resumed that Governor 
Walker failed to confer freely with iiim. What 
did he say on the 27th of May, in his inaugural, 
about the people being excluded from voting, and 
counties being disfranchised.' Did he say, then, 
that there was any cause in existence that would 
prevent the people from voting for representatives 
in the convention.' Here is what he said: 

" I see in this act calling the conventlou no improper or 
unconstinuional restrictions upon the right of suH'ruge. 1 
see in it no test oath or other similar provisions objected to 
in relation to previous laws, but clearly repealed, as repug 
iiant to the provisions of this act, so far as regards the elec- 
tion of delegates to this convention. It is said ihai a fair 
and full vote will not be taken. Who can safely predict 
such a result.' Nor is it just for a majority, as they allege, 
to throw the power into the hands of a minority, from a 
mere apprehension (I trust entirely unfounded) that they 
will not be periiiitteil to e.\ercise the riaht of suflVage." 

He believed then, it appears, that there might 
be a full and fair vote, and urged the people to make 
the experiment. Then, sir, on the 27th of May, 
long after these errors were committed, (if they 
were committed at all,) Mr. Walker believed that 
no cause existed which should prevent a fairand 
full vote, according to his own inaugural. I say, 



then, that the legality of the Legislature is to be 
considered incontestable; and the law passed by 
that body for a convention being a fair law, under 
which no man was prevented from voting except 
by his own fault or neglect, and the voters having 
previously ordered a convention, that convention 
is a fair mouth-piece for the people in its own prop- 
er sphere. What was that sphere.' It was to make 
and proclaim a constitution. So I think the law 
of its formation shows. It was the mouth-piece 
of the people in this respect, and the people spoke 
through it. It had the right, so far as Kansas was 
concerned, to proclaim the constitution, and did 
proclaim the constitution. I have seen it argued 
that they had the right to proclaim the constitution, 
but chose to submit it, and did not submit it fairly 
for ratification. Though I have seen great names 
vouching for this idea, though I have seen it held 
forth from the capilols of Slates and from the Cap- 
itol of this Union, yet, in my humble judgment, 
it hardly rises to the dignity of special pleading. 
It seems rather to be the merest quibble, sir. Did 
nolthe convention proclaim the constitution .' Did 
they not say in the seventh section of their sched- 
ule: "This constitution shall be submitted to the 
Congress of the United States at its next ensuing 
session.'" Were there any terms or conditions 
on which the constitution was not to come here 
for acceptance .' None whatever. That was a cer- 
tain and fixed fact, with which nothing should in- 
terfere. The constitution, then, so far as Kansas 
was concerned, was a thing accomplished, except 
as to one single clause upon which a vote was to 
be taken. When they talk about submitting it for 
ratification or rejection, they always say, by way 
of qualification, " as follows, "or " in the follow- 
ing manner or form," &c., under which phrase 
the extent of submission is always explained. 
They may not have used the mostekgant phrase- 
ology; they may not liave used the language best 
adapted to convey their ideas; but to say, because 
of this awkward phraseology, that they did not 
proclaim the constitution, but did actually submit 
it, seems to resemble very much the course of the 
young practitioner at the bar who demurs to a 
declaration on the ground that some word is spelt 
badly or thatsome phrase is ungrammatical. It is 
what is sometimes called pettifogging. The con- 
stitution being proclaimed, it was to be consid- 
ered the act of the State of Kansas, and could not 
afterwards be affected by the action of the voters 
of the Territory; because you are to consider the 
thing in the relation in which it will stand when 
the constitution is admitted. The aciof admission 
will relate back and raise the act of adoption to 
the dignity of sovereignty. It is to be considered 
as having been a State at that time. This is 
always the operation of the act of admission. 
Congress can only admit Slates, not Territories. 
Slatesonlycan forinconstituti«ns, not Territories. 
The Territory declares its independence and as- 
serts its sovereignty as a State, and Congress, by 
admission, recognizes its claim. This is the mode 
in which many, if not all, the new^tates have 
come into the Union. If, then, you would try 
the question whether this is the constitution of 
Kansas or not, you must try it by legal testimony 
as you would try the questioiuis a juror whether 
a prisoner were guilty or not guilty. If the legal 
testimony acquitted, and you from some hearsay 
rumors should find the accused guilty, you would 



8 



eommit a jjreat outrage. So here; if the legal evi- 
dence, which is the voice of the people speaking 
through the convention, says that this is the con- 
stitution of Kansas, you have no right to look 
elsewhere for proof. All else is illegal testimony. 
The voters are not authorized to annul the former 
action of the people in this particular. 

Gentlemen may say that this is a legal and tech- 
nical view of the question. All I have to say about 
that is, that if we have the law upon our side, how 
can the other side come and ask for equity.' He 
who asks equity must do equity. He who comes 
into court in such a capacity must come with clean 
hands. In what condition do the Topekaites come 
before us to make complaint ? The last President, 
the present President of the United States, Gov- 
ernor Walker himself, all have said that these men 
come not with clean hands. It is pr(,)claimed on 
all sides that they were combining and consorting 
together to overthrow the existing government; 
that they were guilty of moral treason, of sedi- 
tion, of everything except actual treason; and for 
them to come now and ask equity against those 
who have the law upon their side, is, it seems to 
me, making a most unheard of demand. When 
on alien comes here, you do not allow him to vote 
till he has renounced his allegiance to his own 
Government, and proclaimed his allegiance to this, 
because you have not evidence of his attachment 
to this Government. We require a citizen of 
another State to remain some time in our own 
State, in order to give evidence of attachment to 
our institutions. These men have heretofore not 
only given no evidence of attachment to the insti- 
tutions of Kansas, but every evidence of malig- 
nant hate. Let Governor Walker tell their spirit 
and temper. In his proclamation to the people 
of Lawrence, he says: 

" Permit me to caH your attention, as still claiming to be 
citizens oftlie United Statos, to the results of your revolu- 
tionary proceedings. You arc inaugurating rebellion and 
revolution; yim are disregarding the laws of Congress and 
of the territorial governincint, and defying tlieir authority ; 
you are conspiring to overthrow the Government of the 
United States in this Territory. Your purpose, if carried 
into ettect in the mode designated by you, by putting your 
laws forcibly into execution, would involve you in the guilt 
and crime of treason. You stand now, fellow-citizens, upon 
the brink of an awful precipice, and it becomes my duty to 
warn you ere you take the fatal leap into the gulf below. 
If your proceedings are not arrested, you will necessarily 
destroy the peace of this Territory, and involve it in all the 
horrors of civil war. I warn you, then, before it is too 
late, to recede from the perilous position in which you now 
stand." 

And these are the men who ask for a relaxa- 
tion of law ill their behalf! 

I intended to have said a few words further i n 
reference to this point, but 1 have not time. I 
want to say to gentlemen on the other side of the 
Hall, who have sf>ught to establish the Topeka 
constitution , and who, nevertheless, come here and 
complain of irregularity — I want to say to those 
who talk about sifbverting the will of the people 
and popular sovereignty, and v/ho, at the same 
time, boldly declare that if every man, woman, and 
child within the limits of Kansas were to ask for a 
8lave-protectingconsiitution,they would no tallow 
it — I want to say to them: " Oh, for a forty-parson 
power to chant your praise, hypocrisy !" I make 
no appeal to them. But there are gentlemen on 
this side of the Hall, Mr. Chairman, who do im- 



agine, at least, that they follow their doctrines to 
their logical and natural results in opposing the ad- 
mission of Kansas. There are men who do be- 
lieve that the principles of popular sovereignty 
lead to this conclusion. To them I appeal. Think 
again, and trust your friends a little more. A more 
patient aiid confiding examination may yet show, 
that by logical and fair deduction, that doctrine 
leads to the conclusions which 1 have spoken. 

I have seen ip reference to some of them, and 
particularly to a distinguished gentleman in the 
otherwingoftheCapitol, that he has left the stand- 
ard under which lie so long fought; has parted 
from friends whom he has proved and I'ound faith- 
ful; and has turned away to join the ranks of his 
life-long enemies. It is true, too, that he carries 
many with him When the archangel rebelled 
in heaven, he carried a tenth part of the heavenly 
hosts with him. If the gentleman continues in his 
defection, he can find neither his interest nor his 
pleasure in the bosom of his new allies. He cannot 
in his heart apjirovf their principles or purposes. 
They have too many of their own, older, and 
more tried leaders, to reward, to do aught for 
him. They have on their bodies too many scars 
inflicted by his stalwart arm to love him over- 
much. If it is not yet too late for him to hearken 
to the voice of one whom he knows to have been 
for long years, and truly, his friend, I would call 
upon him to come back and take his position again 
in the ranks of that party wlrose triuinphs and 
whose successes have been the dream of his boy- 
hood and the glory of his manhood. I know that 
that would require some sacrifice of personal feel- 
ing. A great man can make that sacrifice; a little 
man cannot. Convince a small man, and he hates 
you forever. A great man sees the error of his 
ways, and retraces his steps. He will have the 
consolation of restoring harmony to the only na- 
tional party left in the land; and what is higher, 
and holier, and better, he may restore peace to 
a torn, an exasperated, and an endangered coun- 
try. Stern truth requires me to say that, whether 
he returns or does not return; let whoever may 
choose turn against us or turn for us — our course 
is onward. If, as I trust, it is onward to victory, 
then whoever may throw himself in tiur path will 
be but crushed beneath the wheels of our con- 
quering chariot. But whether the course of the 
Democratic party is onward to victory or to de- 
feat, still for us of the South there is no retreat We 
are the weaker and the endangered section. We 
cannot yield our ground. The stronger may, and 
yet be strong and mighty, and greatly prepond- 
erant. We strike for safety and self-protection: 
they foraccumulated power. I do not know what 
will be the effect of a refusal to admit Kansas 
under the Lecompton constitution, lam not au- 
thorized to s|>eak the views of A'^irginia. She has 
not spoken for herself. But I will say this: that, 
in my judgment, wherever a true and enlightened 
view of her own honor leads, there she will go; 
and when she speaks, there is not a true son of 
hers in all the land, wherever he may be, who 
will not follow her command. And this, too, I 
will say: that, although hand join in hand to pre- 
vent, the destiny of Virginia, for once and for all, 
for now and forever, is indissolubly united with 
that of her sister States of the South. 



Printed at the Congressional Globe Office. 



LIBRARY 




CONGRESS 



016 087 979 8 



